Legal Ethics Opinion No. 1451

Confidences and Secrets; Fraud on Tribunal; Knowingly False
Statements by Client in Deposition

You have advised that an attorney represents a defendant in a
civil matter in which defendant's deposition was taken. 
Defendant later informs her attorney that she lied about some
matters during the deposition.  The attorney believes the matters
to be irrelevant to the case's merits, but possibly   relevant to
the defendant's credibility.  Defendant's attorney believes the
case might settle shortly after the deposition.  You indicate
further that if the case does not settle, and if the defendant
has to testify later, she has indicated she will correct her
deposition testimony at that time.

You have asked the committee to opine whether, under the facts of
the inquiry, the attorney must, if the defendant is unwilling to
do so, disclose the misrepresentation in the deposition

The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 4-101(D)(2) which mandates that a lawyer reveal 

     information which clearly establishes that his client has,
in the course of the representation, perpetrated a fraud related
to the subject matter of the representation upon a tribunal. 
Before revealing such information, however, the lawyer shall
request that his client advise the tribunal of the fraud.
Information is clearly established when the client acknowledges
to the attorney that he has perpetrated a fraud upon a tribunal.

The committee has consistently opined that an attorney has a duty
to disclose a client's fraud upon a tribunal, if the client
refuses to do so.  See LEOs #727, #1093, #1140, and #1362.

The committee believes that the answer to your question requires
a step-by-step analysis of the impact of DR 4-l0l(D)(2) on facts
you have provided.  First, the committee is of the opinion that a
knowingly false statement by the client does constitute a "fraud"
as articulated in DR 4-l0l(D)(2).  Further, the committee opines
that, because the knowingly false statement occurred during the
course of pre-trial depositions, the fraud is "related to the
subject matter of the representation".  The committee is of the
view that the disciplinary rule's reference in that regard
encompasses a broader interpretation than simply whether or not
the fraud impacts upon the merits of the case.

Having concluded thus that the misrepresentation during the
deposition does constitute a fraud related to the subject matter
of the representation, the committee believes, then, that the
answer to your question turns on the final component of DR
4-101(D)(2), i.e., whether the fraud was perpetrated upon a
"tribunal".  The committee adopts the view of other jurisdictions
which have implicitly included depositions within the definition
of "tribunal".   See, e.g., Committee on Professional Ethics v.
Crary, 245 N.W. 2d 298 (Iowa 1976)(where a client falsely
testified at deposition, the lawyer should have stopped
deposition testimony, remonstrated the client, and revealed the
client's perjury to the affected person or court if the client
refused to do so).  The committee believes the determinative
factor to be whether disclosure is necessary to prevent a
judgment from being corrupted by the client's unlawful conduct. 
See ABA Formal Op. 87-353 (1987).  The committee believes that it
would be unjust to allow the false deposition testimony to stand,
regardless of whether the case proceeds to trial.

Thus, in the facts you present, the committee opines that the
defendant, in falsely testifying at deposition, perpetrated a
fraud related to the subject matter of the representation upon a
tribunal.  The committee further opines that the defendant's
attorney must reveal the client's knowingly false statement
(fraud) to the tribunal if the client is unwilling to do so.  

Committee Opinion
March 13, 1992